¶1dissenting: I am unable to agree witb tbe majority opinion. I think that plaintiff’s cause of action should have been dismissed. It is elementary that to enforce a contract tbe agreement of tbe parties must be certain and explicit, so that tbeir full intention may be ascertained to a reasonable degree of certainty. In construing a *766contract to ascertain tbe intention, tbe setting and purpose must be considered.
¶2Lots 23 and 24 were on ‘Wrightsville Beacb, and purchased for a summer borne. These lots were on tbe east of tbe electric railroad running through 'Wrightsville Beacb and faced and extended to the Ocean. In tbe rear of these lots was Banks Channel, or tbe Sound, used for boating by those who owned tbe cottage and those who came to visit by boat. Tbe Sound was a highway by boat and necessary that these cottages have an outlet to the Sound, or highway.
¶3Plaintiff’s right of recovery was subject to the following agreement: “Also the right of way in and over the lands of the party of the first part, lying between the premises hereby conveyed and Banks Channel on the west, for the purpose of ingress and egress; but the right of way shall cease and determine whenever the party of the first part shall open and establish streets or alleys extending from Banks Channel to the Ocean, either to the north or south of the premises hereby conveyed.”
¶4Plaintiff claims title to the land described above through which defendant had ingress and egress to Banks Channel, or the Sound, from lots 23 and 24. It was to my mind clearly agreed that when defendants purchased the property they had a right of way to the channel or Sound, where they could go and come by boat — they or their friends- — • but it is expressly provided that “The right of way shall cease and determine whenever the party of the first part shall open and establish streets or alleys -extending from Banks Channel to the Ocean, either to the north or south of the premises hereby conveyed.”
¶5Plaintiff contends he owns this property, and if he is to cut defendants off from the Sound, he cannot do this until he, or those through whom he claims, gives defendants ingress and egress by opening either an alley or street to the “north or south of the premises hereby conveyed,” clearly indicating that there must be a street or alley either north or south of the land closed, which must be contiguous to the land closed, for defendants’ benefit for ingress or egress to lots 23 and 24. Plaintiff, nor those through whom he claims, not having provided this street or alley contiguous to the land to be closed, which was used by defendants, for ingress or egress, cannot recover. The contract has not been performed by him or those through whom he claims. Under the contract, plaintiff, having failed to comply with the contract, had no cause of action and the court below, as a matter of law, should have so instructed the jury. The contract was not ambiguous, and this phase should not have been left to the jury as to any street elsewhere or the 'meaning of the contract.
¶6The construction of the contract was a matter of law, therefore plaintiff’s action should have been dismissed.